The sole remaining Kenya case at the International Criminal Court (ICC) was terminated today, after the majority of judges vacated the charges, finding that there was not enough evidence to proceed. Kenyan Deputy President William Ruto and former journalist Joshua Sang were being prosecuted for their roles in crimes against humanity allegedly committed during the post-election violence in Kenya in 2007-08.
The Trial Chamber ruled on a “no case to answer” motion, in which the defense was seeking a dismissal of the cases for lack of evidence. The defense based its initial arguments for dismissal on the prosecution’s failure to prove that Ruto led, and Sang contributed to, a network that planned, organized, financed and executed attacks against ethnic Kikuyus.
In their decision, the majority of the Trial Chamber held that the prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused. In particular, the judges found that there was little evidence beyond circumstantial information of the existence of a “network” or a “common plan.”
The prosecution had argued that a network and common plan could be shown through (1) three preparatory meetings held at Ruto’s house, (2) training of Kalenjin youth, (3) the obtaining of firearms for the purpose of implementing post-election violence, (4) the similar nature and patterns of the attacks and (5) a subsequent cleansing ceremony.
The Trial Chamber considered each of these allegations in turn, and found that there was not enough evidence for any of them and therefore “no reasonable Trial Chamber could conclude that the alleged elements prove the existence of the Network and/or the common plan.”
However, while the Trial Chamber vacated the charges, they stated that this was done without prejudice and does not preclude further ICC or national prosecutions in the future, or an appeal of the decision.
In providing individual reason’s for the decision, Judge Chile Eboe-Osuji also stated that, “it cannot be discounted that the weaknesses in the Prosecution case might be explained by the demonstrated incidence of tainting of the trial process by way of witness interference and political meddling that was reasonably likely to intimidate witnesses.” Judge Olga Herrera Carbuccia dissented.
ICC Prosecutor Fatou Bensouda reacted strongly to the decision, accusing the case of being “eroded by perfect storm of witness interference & politicization.” She further stated that the “witness intimidation campaign seen in this case has been methodical, far-reaching, & exceptionally well-resourced” and that there had been a “hostile climate” in Kenya.
Kenya’s President, Uhuru Kenyatta, whose own case at the ICC was dismissed in 2015, tweeted that the decision “brings to a close what has been a nightmare for Kenya.”
The collapse of this final case seemed likely since at least February 2016, when the ICC Appeals Chamber made a decision about the application of a specific rule of procedure related to the admission of witness evidence.
On February 12, the Appeals Chamber of the ICC unanimously ruled to reverse an earlier decision which would have allowed the admission of prior recorded testimony. In practice, that ruling meant that the ICC prosecutor was no longer able use testimony from five witnesses. It was a significant loss to the strength of the prosecution’s case, which relied heavily on witness testimony.
Local media in Kenya at the time reported that one of the witnesses whose testimony was struck off was a “star witness.” In April 2015, when filing to be allowed to use the prior recorded testimony of 16 witnesses, the Prosecutor had stated that she “intend[ed] to rely” on the evidence from these witnesses to establish the guilt of the accused, and that it contained information “relevant and cogent” to the trial. Senior ICC prosecution trial lawyer Anton Steynberg admitted difficulties in obtaining evidence to prove that there was a network, and of the witnesses who later declined to testify had been expected to describe the “network.”
During the course of the trial, 16 of the Prosecutor’s original 42 witnesses withdrew cooperation or disappeared.
February’s appeal concerned whether amendments to the court’s rules of procedure, which broadened the kinds of evidence that can be admitted to hearings, should apply to the Kenya cases, given that the rules were amended after the cases started.
What did the evidence rule change?
Rule 68 of the ICC’s Rules of Procedure of Evidence concerns the use of testimony recorded before trial as evidence. Before the rule was amended, prior recorded testimony could only be used as a substitute for live testimony at trial in cases where both the prosecutor and defendant had the opportunity to examine the witness at the time of the recording, or the witness does not object to it being used and is present to be cross-examined at some point during the proceedings.
In November 2013, the ICC Assembly of State Parties (ASP) amended Rule 68 to include new categories of when prior recorded testimony can be admitted. One of these, Rule 68(2)(d), allows for the use of prior recorded testimony if it comes from a person who has been subjected to interference (for example, threats or intimidation), and is therefore unable to now present evidence or appear. The other addition, Rule 68(2)(c), allows for evidence to be admitted if it comes from someone who later died, is presumed dead, or is otherwise unable to testify orally.
The amendment took significantly from procedures at the ICTY and ICTR in an attempt to, as the International Bar Association (IBA) states, “overcome obstacles to witnesses appearing in person to give evidence” and broaden what is admissible. However, this new rule goes much further than the ICTY and ICTR, which generally only allow for witness statements and transcripts given in proceedings before those tribunals, except in instances where the witness has died.
Therefore, the IBA “urges the [ICC] Trial Chambers to exercise caution” when applying 68(2)(c) and 68(2)(d), because it raises “a number of concerns about the potential admission of untested evidence,” and stresses that it must be done only in “exceptional” circumstances.
For prior recorded testimony to be admissible under the new rules, the prosecutor must have made reasonable efforts to secure the attendance of the witness, the evidence must serve the best interests of justice, and it must have “indicia of reliability.”
How has the ICC applied this rule in the Kenya case?
In the Kenya case, the prosecution argued that 16 witnesses had been subject to improper interference, including bribery and threats, or had disappeared. While it is difficult to comment on the specific arguments—given that most of the evidence of interference the prosecution provided has been redacted in the public version—the Trial Chamber was satisfied that four of the 16 witnesses were influenced by improper interference. The Trial Chamber additionally found that one witness suddenly disappeared, and therefore was unable to testify orally.
The Prosecutor’s application to use this prior testimony comes in a context where, across Kenya, there appeared to be a general climate of fear. The Prosecutor has brought charges against three individuals for corrupting and intimidating witnesses, and numerous news agencies and rights groups, including Human Rights Watch and Amnesty International, have reported that witnesses are being killed and intimidated.
The Appeals Chamber, however, reversed the Trial Chamber’s decision, stating that it violated Article 51(4) of the Rome Statute, which governs when amendments to the rules of procedure can be applied retroactively. The rule states that changes “shall not be applied retroactively to the detriment of the person” being prosecuted (emphasis added).
The Trial Chamber had found that “detriment” required a showing of prejudice to the rights of the accused. It considered that the amended rule was “neutral in its application” in that it can technically be used by either the prosecution or the defense, and was not detrimental simply because it would allow the Prosecution to admit incriminatory material against the accused. To be detrimental, the Trial Chamber said that it would have to be prejudicial to the fair trial rights of the accused. The Trial Chamber acknowledged that the defense did not have the opportunity to cross-examine the witnesses in open court, which could be a violation of the right to a fair trial, but said it would weigh the strength of the evidence accordingly during a judgment on the merits of the case.
The Appeals Chamber made two general arguments around detriment in its decision. First, it took a broader definition of “detriment,” that the Trial Chamber, stating that it can occur any time “the application of this rule negatively affected the overall position” of the defendants. While the rights of the person are included in what is understood by detriment, it can also mean any form of general “disadvantage, loss, damage or harm.” Second, the appellate judges held that the Trial Chamber erred in making an “abstract assessment of detriment” and that it is necessary to look at how the law is applied in a particular case, and the effect of the amendment on that case. The Appeals Chamber noted that the evidence would not have been admitted in this form under the old rule, and that the deprivation of the opportunity to meaningfully cross-examine the witnesses would negatively affect the overall position of the defendants.
Background to the Kenya cases
William Ruto and Joshua Sang were being tried for their role in post-election violence in Kenya between 2007-08, in which 1,133 people were killed and hundreds of thousands displaced. Ruto was accused of being an indirect co-perpetrator to murder, deportation or forcible transfer of population and persecution rising to the level of crimes against humanity and Sang was accused of having otherwise contributed to these crimes.
The case against Ruto and Sang was the only case remaining from the six suspects initially named by then ICC Prosecutor Luis Moreno Ocampo in December 2010. The “Ocampo Six” originally included current President and then Deputy-Prime Minister of Kenya, Uhuru Kenyatta. Kenyatta, with Ruto as his deputy, teamed up to vie for President in 2013, running a campaign centered on their opposition to the ICC, and using it to rouse up their ethnic bases. The ICC’s Pre-Trial Chamber declined to confirm charges against two of the original suspects in 2012; the Prosecutor dropped charges against a third, Francis Muthaura, in 2013; and in March 2015, the case against Kenyatta was also vacated, due to lack of evidence.
Since coming to power, Kenyatta’s government has mounted a vigorous campaign against the ICC’s intervention in Kenya’s affairs. In October 2013, the African Union (AU), at Kenyatta’s behest, went to the UN Security Council, asking for the ICC’s Kenya cases to be deferred on the grounds that they posed a threat to peace and security in Kenya. Kenyatta, with the support of AU leaders, has repeatedly accused the ICC of exclusively focusing on Africa. And in late January, Kenya successfully got the AU to adopt a non-binding resolution to withdraw en-masse from the ICC.
Although the ICC process was initially popular in Kenya, support for the cases has dropped. In a poll conducted between March and April 2015, about half of the country said that they feared violence if Ruto was convicted.